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The Right to Work, a Decade of Development William F Nebraska Law Review Volume 36 | Issue 2 Article 4 1957 The Right to Work, A Decade of Development William F. Swindler University of Nebraska Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation William F. Swindler, The Right to Work, A Decade of Development, 36 Neb. L. Rev. 276 (1957) Available at: https://digitalcommons.unl.edu/nlr/vol36/iss2/4 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. The Right to Work, A Decade of Development- William F. Swindler* I. INTRODUCTION When the United States Supreme Court on May 21, 1956, held' the "right to work" statutes of Nebraska2 and North Carolina 3 to be inapplicable to labor organizations covered by the Railway Labor Act as amended 1951,4 it marked the first judicial limitation of significance to be imposed upon a legislative movement which, even antedating the Taft-Hartley Act5 in several instances, had enjoyed a steady growth in a number of states since 1947. Generally con- demned by labor spokesmen with the same vigor with which they attacked Taft-Hartley-the latter, indeed, being charged with nur- turing the state legislation 6 -the "right to work" laws have been fer- vently defended by other groups, both public and private, and have provided a political issue of some significance in several primaries and election campaigns.7 The striking uniformity in the provisions t The author wishes to express his thanks to Robert L. Howard, Professor of Law, University of Missouri, for his helpful advice in the preparation of this paper. * A.B., B.Sc. in Journalism 1935, Washington University; M.A. 1936, Ph.D. 1942, University of Missouri; presently Professor of Journalism, University of Nebraska. 1 Railway Employe's Dept. v. Hanson, 351 U.S. 225 (1956). 2 Neb. Rev. Stat. §§ 48-217 -19 (Reissue 1952). The statute is based on Neb. Const. art. 15, §§ 13-15, adopted Nov. 5, 1946. 3 Gen. Stat. N. C. §§ 95-78 to -80 (Supp. 1955). 164 Stat. 1238 (1951), 29 U.S.C. § 152 (1952), amending 48 Stat. § 1185 (1934). 5 61 Stat. 136 (1947), 29 U.S.C. §§ 141-166 (1952). 6 Cf. § 14 (b) of the Labor-Management Relations Act: "Nothing in this Act shall be construed as authorizing the execution or application of agree- ments requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or appli- cation is prohibited by State or Territorial law." 61 Stat. 151 (1947), 29 U.S.C. § 164 (b) (1952). See Finley & Thatcher, Respect for Picket Lines, 32 Neb. L. Rev. 25 (1952). 7 The defeat of incumbent Governor Hall of Kansas in the Republican gubernatorial primary in that state was attributed by Associated Press dis- patches of Aug. 8, 1956, in large measure to his veto of a proposed "right to work" law in 1955. See also N.Y. Times, Dec. 9, 1955, p. 26, col. 5; St. Louis Post-Dispatch, June 24, 1956. THE RIGHT TO WORK of the seventeens state constitutional amendments or statutory en- actments on the subject since 1943 attests to the keen interest in the issue in various jurisdictions and suggests that neighboring legisla- tures have been unusually alert to the steps taken by sister states in defining authority in this areaY It is safe to say that the "right to work" movement has been one of the major issues in American labor policy since Congress undertook to restate that policy a decade ago in the Labor Management Relations Act.10 In the Hanson case" itself, the United States Supreme Court was at pains to distinguish between the questions on which its unanimous opinion was based and the general question of the scope of state authority expressed in legislation under the specific protection of section 14 (b) of Taft-Hartley. Basically, the case revolved about the attempt of certain non-union employees of the Union Pacific Railroad to prevent the company from entering into a union shop agreement with sixteen different labor organizations representing various phases of railroad operation. The Labor Management Rela- tions Act as such was not involved; the central issue was the clause s Ala. Code tit. 26, §§ 376 and 383 (Supp. 1955); Ark. Stat. Ann. §§ 81-201 to -205 (1947); Ariz. Code Ann. §§ 56-1302 to -1308 (Supp. 1955); Ga. Code Ann. § 54-901 and -908 '(Supp. 1955); Iowa Code Ann. § 736A.1 to A.8 (Supp. 1956); Miss. Code Ann. § 6984.5 (Supp. 1954); Nev. Sess. Laws 1953, c. 1; N.D. Rev. Code §§ 34-0901 and -0906 to -0908 (Supp. 1953); S.C. Code §§ 40-46 to -46.11 (Supp. 1955); S.D. Code §§ 17.1101 to .1104 and .1112 (Supp. 1955); Tenn. Code Ann. §§ 50-208 to 212 (Supp. 1953); Tex. Stat., Rev. Civ. art. 5154g(1) to (6) and art. 5207a(1) to (5) (Supp. 1956); Utah Code Ann. §§ 34-16-1 to -16-18 (Supp. 1955); Va. Code §§ 40-68 to -74.5 (Supp. 1956). For Nebraska and North Carolina, see notes 2 and 3 supra. For Florida, see note 98 infra. Four states-Delaware, Louisiana, Maine and New Hampshire-have repealed "right to work" statutes. Twelve other states have considered and rejected bills on this subject. (See Tables 2 and 4 infra.) Thus to date at least 33 states have considered "right to work" proposals. Four other states have enacted related statutes, e. g. prohibiting union shop and other union security plans unless approved by a secret vote of a stipulated majority of the workers in a given enterprise. Cf. Colo. Rev. Stat. c. 80, art. 5-1 (Supp. 1955); Kan. Gen. Stat. § 44-809 (Supp. 1955); Mass. Ann. Laws, c. 150A § 4 (6) (Supp. 1955); Wis. Stat. § 111.06 (Supp. 1955). 9 A comparative analysis of the various state "right to work" laws appears in Part IV infra. 10 Cf. Hartley, Our New National Labor Policy (N.Y. 1948), cc. 2, 9-12; Handler, Impact of the Labor Management Relations Act of 1947 Upon Jurisdiction of State Courts Over Union Activities, 26 Temple L.Q. 111 (1952); Cox, Federalism in the Law of Labor Relations, 67 Harv. L. Rev. 1297 (1954); Hays, Federalism and Labor Relations in the United States, 102 P. Pa. L. Rev. 959 (1954). " Railway Employes' Dept. v. Hanson, 351 U.S. 225 (1956). NEBRASKA LAW REVIEW in the Railway Labor Act as amended in 1951, permitting union shop agreements in the railroad industry 2 -- in contradistinction to sec- tion 7 of Taft-Hartley. 3 However, as the Nebraska Supreme Court chose to define the issue, 14 the constitutionality of the union shop clause in the Railway Labor Act was fundamentally bound up with the general validity of "right to work" legislation-for, as Justice Wenke said: .T. IThe history of the Amendment [to the Railway Labor Act] leaves no doubt of the fact that Congress intended to strike down all state constitutional and statutory restrictions relating to union shop agreements insofar as they applied to carriers in inter- state commerce and the labor organizations representing their employees.' 5 If Congress was within its constitutional prerogative in authorizing railroad labor and management to execute union shop agreements which affected "employees of railroads in Nebraska, contrary to our constitution and statutory provisions," it appeared to many advocates (and some critics) of "right to work" legislation that the fundamental basis of all these laws would be seriously, and perhaps 16 fatally, impaired. Facing the constitutional issue either thus defined or thus im- plied, the Nebraska Supreme Court declared: We think the freedom of association, the freedom to join or not to join in association with others for whatever purposes such association is lawfully organized, is a freedom guaranteed by the First Amendment. We also think that the right to work is one of the most precious liberties that man possesses .... It is a fundamental human right which the due process clause of the Fifth Amendment protects from improper infringement by the federal government. To work for a living in the occupations available in a community is the very essence of personal freedom and opportunity that it was one of the purposes of these amendments to make secure. Liberty means more 12 § 2(11) of 64 Stat. 1238 (1951), makes permissive union-employer agreements embodying any or all of these: (1) a union shop in all phases of the interstate transportation industry; (2) a checkoff on written authori- zation of individual members; (3) a provision against overlapping member- ships in cases of individuals already holding memberships in a union "national in scope." 1361 Stat. 136 (1947), 29 U.S.C. §§ 158(a) (3), 164(b) supplements and revises the Wagner Act provision guaranteeing employees the right to organize by adding a guarantee of "the right to refrain from any and all of such activities" except as this may be affected by the protection against employer interference covered by sections 8 (a) (3) and 14(b). 14 Hanson v. Union Pac. R. Co., 160 Neb. 669, 71 N.W.2d 526 (1955). 15 Id. at 690, 71 N.W.2d at 537. THE RIGHT TO WORK than freedom from servitude. The constitutional guarantees are our assurance that the citizen will be protected in the right to use his powers of mind and body in any lawful calling. Smith v. State of Texas, 233 U. S. 630, 34 S. Ct.
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